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INTERNATIONAL COOPERATION. Daniel H. Claman Senior Trial Attorney U.S. Department of Justice. USD 1.5 to 5 billion. USD 1 to 2.8 billion. USD 3 to 14 billion. USD 4.5 to 45 billion. USD 4 to 8 billion. USD 23 million to 1 billion. USD 100 million. USD 250 million or more.

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international cooperation

INTERNATIONAL COOPERATION

Daniel H. Claman

Senior Trial Attorney

U.S. Department of Justice

usd 1 5 to 5 billion
USD 1.5 to 5 billion

USD 1 to 2.8 billion

USD 3 to 14 billion

USD 4.5 to 45 billion

USD 4 to 8 billion

USD 23 million to 1 billion

USD 100 million

USD 250 million or more

USD 106 to 700 million

overview
OVERVIEW
  • Informal versus Formal Assistance
  • Multilateral Treaties Generally
  • U.N. Convention against Corruption
  • Assistance from the United States
purpose and limitations
PURPOSE AND LIMITATIONS

Formal Requests

Informal Requests

  • Information and

Investigation

  • Not evidence
  • Non-compulsory

measures

  • Use in Court may be

prohibited

  • May need

authentication

  • Evidence
  • Compulsory Action
  • Certification of

Authenticity

  • Rule of Specialty
  • Covered Illicit

Conduct

what to ask for
WHAT TO ASK FOR

Formal Requests

Informal Requests

  • Interview Witnesses
  • Visual Surveillance
  • Public Record

Search

  • Suspicious Activity

Report Information

  • Open investigation
  • Unofficial public

documents

  • Formal Service
  • Sworn Testimony
  • Financial Records
  • Certified Documents
  • Nonconsensual Search
  • Restraint
  • Enforce Judgment
  • Lift restraint
  • Confidentiality
informal mechanisms
INFORMAL MECHANISMS
  • International law enforcement contacts
    • Law Enforcement Attaches
    • Embassy personnel
  • Financial Intelligence Units (FIUs)
    • Investigative Lead Information
  • Follow informal with formal…
myth or truth

MYTH OR TRUTH?

NO TREATY NO HELP

formal mechanisms
FORMAL MECHANISMS
  • Multilateral agreements
  • Bilateral Mutual Legal Assistance Treaties
  • Letters Rogatory
  • Extradition Treaties

Often Depends on Foreign law

mulitlateral treaties
MULITLATERAL TREATIES
  • United Nations Conventions
    • 1988 Drugs (Vienna)
    • 1999 Terrorist Financing
    • 2000 Organized Crime (Palermo)
    • 2002 Corruption (Merida)
  • Inter-American Conventions
    • 1992 Mutual Legal Assistance in Criminal Matters
    • 1996 Corruption
    • Terrorism
old forfeiture legal assistance regime
OLD FORFEITURE LEGAL ASSISTANCE REGIME
  • Requested country either
    • open own case OR
    • enforce a foreign confiscation judgment
  • 1988 Vienna Convention
  • 2000 Palermo Convention
new forfeiture legal assistance regime
NEW FORFEITURE LEGAL ASSISTANCE REGIME
  • Direct recovery without forfeiture (Art. 53)
  • MUST have basis to provide assistance (Art. 54)
  • Procedures for international cooperation (Art. 55)
direct recovery article 53
DIRECT RECOVERY - ARTICLE 53
  • Courts must be open for civil action
    • Victim Country files civil suit to establish title
  • Restitution
    • Victim Country can be recognized for award of damages or compensation
  • Claimant in forfeiture proceedings
    • Victim country can be recognized as a legitimate owner before final forfeiture
framework for forfeiture cooperation article 54
FRAMEWORK FOR FORFEITURE COOPERATION - ARTICLE 54
  • Provisional measures
    • Be able to enforce a foreign restraint order
    • Freeze on evidence that a forfeiture order forthcoming
    • Consider other options: arrest, charge
  • If open own case domestic restraint (Art. 31)
framework for forfeiture cooperation article 5415
FRAMEWORK FOR FORFEITURE COOPERATION - ARTICLE 54
  • Confiscation/Forfeiture
    • Must be able to enforce a foreign order
    • Must be able to open own case
    • Consider non-conviction based forfeiture
international cooperation in confiscation article 55
INTERNATIONAL COOPERATIONIN CONFISCATION - ARTICLE 55
  • On receipt of request, either:
    • Enforce foreign judgment OR
    • Open own case
  • Guidelines for what to include in request
  • Deny request or lift provisional measures if:
    • Sufficient evidence not provided
    • De minimis value
    • BUT provide opportunity to cure problem
dual criminality article 46 9
DUAL CRIMINALITYARTICLE 46 (9)
  • Traditional exception to legal assistance
  • Coercive measures, dual criminality still applies
  • Non-coercive measure, provide assistance
    • Unless de minimis, conflict with national law
minimum requirements for treaty assistance
MINIMUM REQUIREMENTS FOR TREATY ASSISTANCE
  • Identify Authority making the request
  • Object and Nature of Investigation or proceeding (including offenses)
  • SUMMARY of Pertinent Facts
  • Precise Description of Assistance Requested
  • Identity, location, nationality, of people involved
  • Purpose of request
forfeiture requests
FORFEITURE REQUESTS
  • Description of property, including location and value (where possible)
  • Admissible Copy of Orders on Which Request Based
  • Statement of Notice provided if Enforcement of Judgment sought
  • Statement that Forfeiture order is final and extent that enforcement is sought
forfeiture assistance
FORFEITURE ASSISTANCE
  • May be refused or provisional measures lifted if
    • Evidence not provided
    • property of de minimis value
  • Opportunity to cure defect before provisional measures lifted
assistance from the u s
ASSISTANCE FROM THE U.S.
  • U.S. initiates its own forfeiture action
    • Criminal Forfeiture
    • In Rem Forfeiture
  • Enforce Foreign Forfeiture Judgments
  • Provisional Restraint Mechanisms
enforcement of judgments
ENFORCEMENT OF JUDGMENTS

28 U.S.C. § 2467

  • Foreign Offense that would be Forfeitable Federal Violation if Committed in the U.S.
  • Treaty or Agreement
  • Attorney General Certification
  • Criminal and in rem Judgments
enforcement of judgments25
ENFORCEMENT OF JUDGMENTS
  • Enforce Judgment Unless
    • System Incompatible with Due Process
    • No personal jurisdiction
    • No subject matter jurisdiction
    • Insufficient notice to Defendant
    • Judgment obtained by fraud
  • Court Bound by Factual Findings in Foreign Judgment
provisional measures
PROVISIONAL MEASURES
  • Mechanism will Depend on Circumstances
  • Foreign Arrest or Charge can be basis for immediate 30-day freeze
    • Provide copy of charging document
    • Must provide additional evidence
  • Enforce foreign restraining order
    • Include specifics in order
  • Based upon affidavit
myth or truth27

MYTH OR TRUTH?

FEW COUNTRIES HELP

before making a request
BEFORE MAKING A REQUEST
  • Coordinate timing with criminal investigation
  • Leave time for other country to act
  • Contact foreign attaches at local embassies, Central Authority of other country
  • Anticipate possibility of disclosure
slide29

Daniel H. Claman

Senior Trial Attorney

Asset Forfeiture and Money Laundering Section

U.S. Department of Justice

Criminal Division (AFMLS)

Washington, D.C. 20530

Tel. (202) 514-6340

Fax (202) 514-5522

Daniel.Claman@usdoj.gov